Decided on April 12,2005



Pratibha Upasani, - (1.) THIS Misc. Appeal is filed by the appellant/original defendant No. 2 Shri Dharampal Seth being aggrieved by the order dated 7.7.2004 passed by the learned Presiding Officer of the Debts Recovery Tribunal-II. Mumbai on Exhibit No. 30 in Original Application No. 2440/2000. By the impugned order, the learned Presiding Officer rejected the application made by the appellant for striking off his name, in individual capacity, as defendant from the cause title and for not permitting the applicant Bank to carry out amendment as "Dharampal Seth H.U.F."
(2.) I have heard Mr. Sharath Pai for the appellant and Mr. Nasikwala for the respondent Bank. I have also gone through the proceedings and in my view, there is no infirmity in the impugned order. Proceedings reveal that the defendant Nos. 1 to 3 in their written statement filed on 7.8.1991, when the matter was in the High Court, had contended that the defendant No. 2 HUF (and not as a person) was a partner in the firm of defendant No. 1. When this contention was brought to the notice of the Court, Hon'ble Mr. Justice D.R. Dhanuka granted leave to the Bank to amend the cause title in terms of draft. The amendment was to be carried out by 29.7.1999. The defendant No. 2 had contended that the applicant Bank did not carry out the amendment within the given time and no amendment had been carried out even till today. According to him, therefore, the name of the defendant No. 2 (appellant herein), in his individual capacity is liable to be struck off from the cause title.
(3.) THE Bank by filing reply to the said application contended that the amendment had been carried out on 26.7.1991 itself and that the cause title showed that words "for self and karta of his HUF" were written in red ink after the name of the defendant No. 2. It was further contended by the Bank that the amendment was initiated by the then lawyer who also appeared to have made usual endorsement about the carrying out of the amendment on the top right side of the cause title of the original application. THE learned Presiding Officer observed that he had noticed that there were no signatures of the Prothonotary vouchsafing that the amendment was carried out on 26.7.1991 and that it was missing. It was, therefore, the contention of the defendant No. 2 Shri. Dharampal Seth that the amendment had not been carried out at all, muchless on the purported date. THE Bank, however, countered this statement by submitting that the publication of summons was done by the Bank on the basis of the office copy of the original application in which, unfortunately, the amendment was not mentioned. It was pointed out by the Bank that as such, the name of the defendant No. 2 was shown in the publication in his individual capacity. As far as carrying out of the amendment is concerned, the Bank had filed affidavit of one Mr. N.H. Khopale to which was annexed letter of erstwhile Counsel Mr. N.V. Vimadalal inter alia stating that the amendment as seen in the cause title was proposed in the draft for amendment handed to the Court at that time and the amendment was accordingly carried out at that time itself.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.